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April 18, 2013 | By | Posted in Legislature

How old is your justice? PA considers bumping up judge’s retirement age

By Melissa Daniels | PA Independent

SANE OR SENILE: Justices in Pennsylvania are trying the constitutionality of the state's retirement mandate in court.

SANE OR SENILE: Justices in Pennsylvania are trying the constitutionality of the state’s retirement mandate in court.

HARRISBURG — For Pennsylvania judges, turning 70 means it’s time to retire whether they’re ready or not.

But in the face of constitutional arguments and spry septuagenarians of the modern age, state lawmakers are taking a look as to whether that law is worth an update.

A House subcommittee hearing Thursday examined House Bill 79, which would raise the required retirement age for justices to 75. The Pennsylvania Constitution states all justices must leave the bench by the end of the year they turn 70. They can continue to serve as a senior judge, which part time, until they turn 78.

To bill sponsor Rep. Kate Harper,R-Montgomery, it’s hard to believe a justice is suddenly unable to do their job at 71. Age brings reason, she said, and justices can be plenty effective after age 70.

“If we want wise and just judges making the right decisions for the individuals who stand in front of them, we just might learn to prize their extensive experience and the wisdom that it brings,” Harper said.

Though lawmakers have broached the issue in the past, several justices nearing t70 are plaintiffs in two pending cases challenging the constitutionality of the retirement requirement. One of those cases is scheduled to go before the Pennsylvania Supreme Court on May 8.

HARPER: The Montgomery County lawmaker and attorney wants to raise the age for justice retirement from 70 to 75.

HARPER: The Montgomery County lawmaker and attorney wants to raise the age for justice retirement from 70 to 75.

In order to change the Constitution, the bill would have to pass two consecutive sessions of the General Assembly and go to voters in a statewide referendum.

Proponents of changes say age is relative, and the judiciary system has existing structures to remove justices who become unfit to their job at any age. But others question diminished mental capacity, and say booting judges out at a certain point allows for fresh turnover.

Dr. Thomas Weida, a professor at the Penn State College of Medicine, said age isn’t the only factor that can diminish capacity for reason. Diet, exercise, genetics and other health considerations can play a role in cognitive abilities. And conditions like dementia aren’t statistically more likely to set in at 75 than they are 70, he said.

“Even in advanced age, the prevalence of dementia which can interfere with decision making is relatively small part up until the age of 75,” Weida said.

Weida described the parts of the brain that deteriorate with age, called spiny dendrites, which affect capacity for new memories. But the parts associated with long-term knowledge, called stubby dendrites, suffer no declines.

In cases where a judge of any age may appear to lose their capacity to serve, the court already has in place a process for removal that starts with a complaint.

Further, judges often will step down of their own volition, said Pennsylvania Bar Association President Tom Wilkinson.

“It is not at all uncommon for other members of the judiciary and the county where a judge who might be impaired serves, or for the bar and others, to encourage more senior judges who are less effective or productive to step down,” Wilkinson said.

This chart, provided by Pennsylvanians for Modern Courts, breaks down the arguments associated with the state's mandatory retirement age for justices.

This chart, provided by Pennsylvanians for Modern Courts, breaks down the arguments associated with the state’s mandatory retirement age for justices.

Nationwide, 33 states have provisions on mandatory retirement, according to Lynn Marks, executive director of Pennsylvanians for Modern Courts. While Marks said the organization had no official position on the bill, she said there is a national trend towards increasing or eliminating these requirements.

Ken Gormley, dean of the School of Law at Duquesne University and an expert on the Pennsylvania Constitution, said the retirement mandate was created during the 1968 Constitutional Convention. Before then, judicial age was open-ended, which created problems if justices began show signs of senility.

“It was to eliminate the unpleasantness of forcing the Supreme Court or some other body to remove judges, a small number of judges, who were having some kind of mental or physical infirmity,” Gormley said.

Gormely said the framers had the expectation the mandate would be updated in the future. At the time, average life expectancy was about 70. Nearly half a century later, average life expectancy is at 78. Additionally, more women have entered the profession, who tend to have longer life expectancies than men, Gormley said.

He called the legislation “a perfect balance” between updating the law, while still ensuring turnover in the judicial system. The state’s amendment process is designed precisely to allow for these kind of updates, he said.

“If there is no point at which judges must retire or take some sort of senior status, this may ultimately harm the citizens of the commonwealth if there is no opportunity for the fresh ideas, fresh talent and diverse pool of qualified candidates to compete for judicial election or appointment,” he said.

Contact Melissa Daniels at melissa@paindependent.com

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Melissa Daniels is a reporter for PA Independent. She can be reached at 717-350-0962 or Melissa@PAIndependent.com

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